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Significant panel decisions

To view decisions, click on the PDF name of the decision (to the right of the date) and you will access the PDF file which contains the decision. Use of the California Compensation Cases citation is used for the community's information and convenience only with a recognition that the text and/or summary of the decisions may also appear in other publications.

2014 significant panel decisions

In affirming the Workers’ Compensation Judge’s finding that defendant’s Utilization Review (UR) decision was not timely communicated to the requesting physician and the employee as required by Labor Code section 4610(g)(3)(A) and Administrative Director’s Rule 9792.9.1(e)(3), the Appeals Board held: (1) A defendant is obligated to comply with all time requirements in conducting a UR, including the timeframes for communicating the UR decision; (2) A UR decision that is timely made but is not timely communicated is untimely; (3) When a UR decision is untimely and, therefore, invalid, the necessity of the medical treatment at issue may be determined by the WCAB based upon substantial evidence.

Where the injured worker filed an unverified petition appealing an Independent Medical Review (IMR) determination, the Appeals Board held that the petition is subject to dismissal because Labor Code section 4610.6(h) provides that such a determination “may be reviewed only by a verified appeal.” Further, Rule 10450(e) requires that any petition filed with the Workers’ Compensation Appeals Board “shall be verified under penalty of perjury in the manner required for verified pleadings in courts of record,” and it provides that a non-verified petition may be summarily dismissed or denied. While lack of verification does not automatically require dismissal of an unverified petition, an appeal may be dismissed for lack of verification if the appealing party does not within a reasonable time cure the defect after receiving notice of the defect.

Where the defendant had unilaterally terminated nurse case manager services to the injured worker, the Appeals Board affirmed the WCJ’s award reinstating those services, holding as follows:

The provision of a nurse case manager is a form of medical treatment under Labor Code section 4600;

An employer may not unilaterally cease to provide approved nurse case manager services when there is no evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury;

Use of an expedited hearing to address the medical treatment issue in this case is expressly authorized by Labor Code section 5502(b)(1);

It is not necessary for an injured worker to obtain a Request For Authorization to challenge the unilateral termination of the services of a nurse case manager.

The Appeals Board held that without regard to Court Administrator Rule 10252, which limits expedited hearings to specific issues in accepted claims, an expedited hearing may be requested and conducted under Labor Code section 5502(b)(2) and Administrative Director Rule 9767.6(c) to determine whether the employee must treat in the employer’s medical provider network during the 90-day delay period, under Labor Code section 5402(b), that the employer has to investigate and determine whether to accept or reject the claim.

2013 significant panel decisions

The Appeals Board panel held that under Labor Code section 4903.06, a lien claimant is not required to pay a lien activation fee prior to a 2013 lien trial where: (1) the declaration of readiness (DOR) is filed prior to January 1, 2013; (2) the lien conference takes place prior to January 1, 2013; and (3) the lien trial takes place in 2013, without any intervening 2013 lien conference.

Where the defendant had unilaterally terminated nurse case manager services to the injured worker, the Appeals Board affirmed the WCJ’s award reinstating those services, holding as follows:

The provision of a nurse case manager is a form of medical treatment under Labor Code section 4600;

An employer may not unilaterally cease to provide approved nurse case manager services when there is no evidence of a change in the employee’s circumstances or condition showing that the services are no longer reasonably required to cure or relieve the injured worker from the effects of the industrial injury;

Use of an expedited hearing to address the medical treatment issue in this case is expressly authorized by Labor Code section 5502(b)(1);

It is not necessary for an injured worker to obtain a Request For Authorization to challenge the unilateral termination of the services of a nurse case manager.

2011 significant panel decisions

The Appeals Board panel determined that when a paper file, an electronic file in EAMS, or a combined paper and electronic file is sent to the Appeals Board after the filing of a petition for reconsideration, removal, or disqualification, (1) there must be a complete and properly organized record which includes all documents admitted in evidence, (2) it is the responsibility of the WCJ to ensure that all documents in the record are scanned into EAMS, or at least placed in the paper file in proper order, no later than transmission of the file(s) to the Appeals Board, and (3) without a proper record the matter may be returned to the WCJ to properly complete the record.

The Board panel concluded that if an ambulatory surgery center is claiming to have provided medical treatment to applicant as a "clinic," it is required to have a fictitious-name permit and license from the Medical Board. However, if it is claiming to have provided services only as an "outpatient setting," it is not required to have a license or fictitious-name permit from the Medical Board if it is properly accredited by an agency recognized by the Medical Board.

The Board held that for purposes of Labor Code ??4062.1(e) and 4062.2(e), an employee has "received" a comprehensive medical-legal evaluation when the employee attends and participates in the medical evaluator's examination. In this case, because the applicant had not attended and participated in (i.e., not "received") an examination by a panel QME scheduled while the applicant was not represented by an attorney, the applicant was entitled to request a new QME panel when the applicant became represented by an attorney. The workers' compensation judge's order for a new QME panel was therefore affirmed.This opinion involved interpretation of additions to Labor Code ??4062.1 and 4062.2 by SB 899.

The Board panel granted reconsideration and amended the WCJ?s decision to defer the issue of the calculation of the amount of the permanent disability indemnity due to applicant after apportionment, pending issuance of the Supreme Court?s decision(s) in Brodie v. Workers? Comp. Appeals Bd., review granted November 15, 2006, S146979 (2006 Cal. LEXIS 13527), in Welcher v. Workers? Comp. Appeals Bd., review granted November 15, 2006, S147030 (2006 Cal. LEXIS 13523), or in any other case in which the Supreme Court issues an opinion that resolves this issue. This deferral approach was a continuation of the approach previously being employed by the Appeals Board in light of the ongoing conflict and uncertainty in the appellate case law on this issue where multiple injuries and/or apportionment of permanent disability under new Labor Code sections 4663 and 4664 are involved.

The Board panel concluded that bias or the appearance of bias solely against an attorney or law firm, as opposed to the party that the attorney or law firm represents, may be a valid ground for a petition for disqualification of a WCJ. In granting the defendant's petition for disqualification, it was determined that although there was no present actual bias by the judge toward the petitioning law firm, there was the appearance of bias sufficient to warrant disqualification.

The Board panel held that for claimed industrial injuries occurring on or after January 1, 2005, in which the employee is represented by an attorney: (1) pursuant to section 4060(c), medical disputes regarding the compensability of the alleged industrial injury must be resolved solely by the procedure provided in section 4062.2; and (2) an evaluation regarding compensability may not be obtained pursuant to section 4064(d) - and, if obtained, it is not admissible.

The Board panel held that, in response to a treating physician's recommendation for spinal surgery, an employer has the following options: 1) authorize the surgery, 2) object to the surgery, pursuant to section 4062(b), by filing a DWC Form 233 within 10 days of receipt of the doctor's recommendation, 3) submit the recommendation to utilization review, or 4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the timelines for each process. If the employer denies the surgery pursuant to its utilization review, the employee must object within 10 days of receipt by the employee of the employer's denial. The dispute will then be resolved under the second opinion procedures in section 4062(b).

The Board, in affirming the WCJ?s finding that Mr. Hoffman had violated the provisions of WCAB Rule 10779, concluded that (1) both Rule 10779 and the State Bar Act preclude any non-reinstated former attorney who has been disbarred or suspended by the Supreme Court (for reasons other than nonpayment of State Bar fees), who has been placed on involuntary inactive status by the State Bar, or who has resigned with disciplinary proceedings pending against him or her from appearing as a representative of any party before the WCAB (at least if they have not received permission under Rule 10779); (2) this preclusion against appearing as a representative of any ?party? extends to appearing on the behalf of any litigant, including but not limited to lien claimants; and (3) this preclusion against ?appearing as a representative? in WCAB proceedings extends to any activity that would constitute the practice of law.

It was noted that en banc decisions of the Appeals Board are binding precedent on all Appeals Board panels and WCJs pursuant to WCAB Rule 10341. The Board concluded that this principle remains true where a petition for writ of review has been filed or even where a writ of review has been granted, either in the actual case in which the en banc decision issued or in a different case in which the en banc decision is directly implicated, unless and until either (1) the appellate court issues an opinion that explicitly or implicitly overrules the en banc decision or (2) the appellate court stays or suspends the operation of the en banc decision prior to the Court's issuance of an opinion.

NOTE: The Board held that applicant was not an "employee" of defendant homeowners under Labor Code sections 3351(d) and 3352(h) because, in the 90 days prior to his injury, he had not both worked at least 52 hours for them and earned at least $100 from them. Nevertheless, the Board also concluded applicant was an "employee" of defendant homeowners under Labor Code section 3715(b): (1) because it applies to all residential employees listed therein, including those employed by insured employers; (2) because it is the Legislature's express intent that the three types of residential employees listed therein are covered under the Workers' Compensation Act if they would have been covered by the law in effect prior to January 1, 1977; and (3) because the pre-1977 law covered residential employees if either the work being performed was contemplated to last more than 10 days or the total labor cost was at least $100.00, and here applicant's work met the latter requirement.

NOTE: The Board held that the amendments to sections 4663 and 4664, which concern apportionment of permanent disability, have not affected the statutes governing the determination of whether an injury arises out of and occurs in the course of employment, i.e., sections 3600 and 3208.3, or the case law interpreting those statutes.

NOTE: The Board held that an applicant is entitled to such medical treatment as is reasonably required to "relieve" from the effects of an industrial injury, even if such treatment will not "cure" that injury. Thus, the phrases "cure and relieve" and "cure or relieve" are interchangeable.

NOTE: The Board held that the timelines of an appeal from any determination or recommendation of the Administrative Director's vocational rehabilitation unit with reference to an injury occurring before January 1, 2004, is controlled by former Labor Code section 4645(d), and that defendant's appeal in this case was timely filed (i.e., filing of appeal with the Board within 20 days of service of the decision/recommendation, plus any additional time pursuant to WCAB Rule 10507).

NOTE: The Board concluded in essence that local child support agencies may issue valid and enforceable earning assignment orders without a signature by a judicial officer, that those assignment orders may include both future support obligations and arrearages, and that the local agencies are not required to obtain prior WCAB approval of these assignment orders.

2003 significant panel decisions

NOTE: The board held "that an expedited hearing shall be set on a defendant's Declaration of Readiness to Proceed to Expedited Hearing under Section 5502(b) where the issue of a defendant's right to medical control within the scope of Section 4600.3, and concomitantly, an applicant's entitlement to medical treatment, is presented for decision."

In summary fashion, the Board (1) opined that for pre and post window period injury cases, applications must be filed before hearings may be conducted, orders issued, or the Board's judicial process invoked to compel discovery; (2) recognized that non-compelled pre-application investigation is permissible; (3) outlined remedies for pre-application abuse of discovery procedures; and (4) outlined conditions requiring the filing of an application under Labor Code section sections 4061(m) and 4063.

2002 significant panel decisions

The case deals with whether and under what circumstances Legion Insurance Company, now in rehabilitation, can be excused from an obligation to make lump-sum payments and can receive a stay on future hearings if a settlement is not reached in denied or disputed cases.